A further reply to Mark Shea

At Catholic World Report, Mark Brumley comments on my exchange with Mark Shea concerning Catholicism and capital punishment.  Brumley hopes that “charity and clarity” will prevail in the contemporary debate on this subject.  I couldn’t agree more.  Unfortunately, you’ll find only a little charity, and no clarity, in Shea’s latest contribution to the discussion.  Shea labels his post a “reply” to what I recently wrote about him but in fact he completely ignores the points I made and instead persists in attacking straw men, begging the question, and raising issues that are completely irrelevant to the dispute between us.

Before addressing these problems, though, it is only fair to acknowledge Shea’s very kind remarks about me and my work.  He writes:

Dr. Feser has now written a reply in which he gives his perception that I think him some kind of monster for arguing for the death penalty.  I think nothing of the kind.  He is a brother in Christ. He has done very good work arguing for theism against atheism.  He has written in the past against the excuses for the nuclear slaughter of the people of Hiroshima and Nagasaki (and I have written him to thank him for doing so).  And of course, he has taught Thomas to a world in desperate need of Thomas.  Bravo and may his tribe increase.

End quote.  I am happy to return the compliment and acknowledge that I have long admired and recommended Shea’s work in Catholic apologetics, such as his book By What Authority?, which is a fine exposition and defense of the Catholic position on the authority of tradition.

Regrettably, the standard of charity and clarity he exhibits in that book is not to be found in his treatment of the subject of capital punishment.  Let’s consider the problems with his latest remarks:

1. Shea misrepresents Catholic teaching

Noting that Joe Bessette and I argued in a recent Crisis article that the legitimacy in principle of capital punishment is irreversible Catholic teaching, Shea emphasizes that recent popes and bishops have nevertheless urged that in practice it ought to be abandoned.  Characterizing Catholic pro-capital punishment views like the one Joe and I defend, Shea says:

“Yes,” goes the argument. “But that is not dogmatic teaching.”

To which the right and proper reply is, “So what?” It is not the case that the Church functions by the rule, “If it’s not dogma, feel free to blow it off” particularly when we are talking about a matter of life and death.

End quote.  Shea seems to think that my position is that as long as some teaching is not put forward as infallible dogma, then a Catholic is free to reject it.  However, not only is that not my view, I have several times explicitly criticized the tendency of some Catholics to suppose that they are obliged to accept only infallible teachings.

The trouble is that Shea ignores the fact that, in addition to (i) infallible and binding magisterial statements and (ii) non-infallible but still binding statements, there are also (iii) non-infallible and non-binding statements.  (In fact, as I have explained elsewhere, Catholic theology recognizes five categories of magisterial statement.)  And the currently dominant view among Catholic churchmen that capital punishment ought to be abolished is among these non-binding statements.

How do we know this?  There are several considerations that show this to be the case, which Joe Bessette and I discuss at length in our forthcoming book By Man Shall His Blood Be Shed: A Catholic Defense of the Death Penalty.  But one of them is that the Church herself has explicitly told us so.  Both the Crisis article and my first post responding to Shea quoted the 2004 statement by Cardinal Ratzinger, then head of the CDF and the Church’s chief doctrinal officer, to the effect that “not all moral issues have the same moral weight as abortion and euthanasia,” and in particular that “there may be a legitimate diversity of opinion even among Catholics about … applying the death penalty,” so that even a good Catholic could be “at odds with the Holy Father” on that particular subject.

Virtually identical language is used in the 2004 USCCB document “Theological Reflections on Catholics in Political Life and the Reception of Holy Communion,” written by Archbishop William Levada, later to become Ratzinger’s successor at CDF.  Levada wrote:

Catholic social teaching covers a broad range of important issues.  But among these the teaching on abortion holds a unique place.  Not all moral issues have the same moral weight as abortion and euthanasia.  For example, if a Catholic were to disagree with the Holy Father on the application of capital punishment… he would not for that reason be considered unworthy to present himself to receive Holy Communion... While the Church exhorts civil authorities… to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible… to have recourse to capital punishment.  There may be a legitimate diversity of opinion even among Catholics about… applying the death penalty, but not with regard to abortion and euthanasia.

End quote.  So, we have recent statements from both the CDF and the USCCB explicitly repudiating the notion that a good Catholic is obliged to oppose capital punishment, and explicitly repudiating the claim that capital punishment is comparable to abortion.  Yet Shea claims that a good Catholic and a consistent opponent of abortion must oppose capital punishment.  Who should Catholics listen to, Shea, or the CDF and USCCB?

Bizarrely, though the Ratzinger passage has been quoted in both of the articles Shea has responded to, he has completely ignored it, offering no explanation at all of how his position is consistent with it.  Why?  Shea solemnly cites other magisterial documents, presenting himself as humbly willing to submit to what they teach.  So how can he consistently ignore these particular documents?

In his comments on my debate with Shea, Mark Brumley quotes the Vatican II document Gaudium et Spes, which at section 43 states:

[I]t happens rather frequently, and legitimately so, that with equal sincerity some of the faithful will disagree with others on a given matter.  Even against the intentions of their proponents, however, solutions proposed on one side or another may be easily confused by many people with the Gospel message.  Hence it is necessary for people to remember that no one is allowed in the aforementioned situations to appropriate the Church's authority for his opinion.

Unfortunately it seems to me that what Shea has done on the issue of capital punishment is precisely to try to “appropriate the Church's authority for his opinion” that any faithful Catholic must oppose capital punishment – an opinion which, again, the CDF and USCCB documents explicitly reject.

2. Shea ignores the excesses of some Catholic abolitionists

In our Crisis article, Joe Bessette and I argued that the legitimacy in principle of capital punishment is irreversible teaching.  In his latest remarks, Shea says of the article: “Given that the Church has, effectively, reversed its teaching [on capital punishment] – calling for its abolition where it once permitted it – the article was misleading at best.”  This might seem to imply that Shea thinks the legitimacy in principle of capital punishment is not irreversible teaching.  However, that is clearly not what Shea means.  For one thing, in his initial reply to the Crisis article he acknowledged the truth of its central thesis.  For another, in his latest post he repeats the point, writing: “Yes, it is true that the Church cannot say that the death penalty is intrinsically immoral as, say, abortion is.”

Now, demonstrating that very thesis is the only thing the Crisis article was concerned with.  So how exactly was the article “misleading at best”?  We did not deny in the article that recent popes have nevertheless been opposed to capital punishment in practice.  Indeed, we explicitly acknowledged that, and quoted some recent papal statements to that effect. 

What is truly misleading is the extreme rhetoric of Shea and too many other Catholic opponents, which lumps capital punishment in with abortion, euthanasia, and the like as equally representative of a “culture of death.”  No faithful Catholic can possibly take such a view, since scripture, tradition, and two millennia of papal teaching insist that the guilty do not have the same rights as the innocent, and that capital punishment, unlike abortion and euthanasia, therefore can be just.  That is why Cardinal Ratzinger and Archbishop Levada insisted in their statements that capital punishment must not be lumped in with these intrinsic evils.

To his credit, and as I have already noted, Shea is sometimes careful to acknowledge that capital punishment can be legitimate in some cases and therefore cannot not be lumped in with abortion, etc.  Unfortunately, many of his fellow abolitionists are not so careful.  As I noted in my previous response to Shea, there are many Catholics who hold that capital punishment is immoral always and in principle, and that the Church can and should reverse past teaching on this point.  This includes not only theologically liberal Catholic opponents of capital punishment, but also “new natural law” theorists like Germain Grisez, John Finnis, Robert P. George, Christian Brugger, and Chris Tollefsen, who have a reputation for theological conservatism.  (Joe and I provide a thorough refutation of their arguments in the forthcoming book.)  Extreme statements are also often made by Catholic bishops, and as we noted in the Crisis article, even Pope Francis has made statements that seem to imply that capital punishment is intrinsically immoral – something which, as Shea himself admits, “the Church cannot say.”

Now, the eminent Catholic theologian Cardinal Avery Dulles – though he was himself personally opposed to resorting to capital punishment in practice – argued, in comments that Joe and I quoted in our Crisis article, that an outright reversal of traditional teaching on the legitimacy in principle of capital punishment would undermine the credibility of the magisterium in general.  Accordingly, there are grave dangers in the extreme rhetoric some Catholic abolitionists resort to.  It gives the false impression that the Church’s teaching conflicts with scripture, tradition, and previous papal teaching.  This gives aid and comfort to Protestant critics of Catholicism, and also to extreme Catholic traditionalists who claim that the post-Vatican II Church has fallen into heresy.  It also gives aid and comfort to those who think that the Church can and should change her teaching on abortion, contraception, divorce, euthanasia, and other doctrines unpopular in contemporary secular society. 

So, the problem Joe and I were addressing in the Crisis article is a very real one.  And as I said in my previous response to Shea, upholding the credibility of the magisterium was our primary motivation in writing our forthcoming book.

Here too Shea completely ignores what I wrote.  But if he is serious about wanting to uphold Catholic teaching on capital punishment, then he should not ignore it, because the legitimacy in principle of capital punishment is itself part of that teaching, and a part of it that is currently under attack.  Shea thinks that some advocates of capital punishment go too far in their defense of it, to the point of bloodthirstiness.  Fair enough; no doubt some of them do (though not, I think, nearly as many as Shea supposes).  But it is also possible to go too far in one’s opposition to capital punishment, and those who denounce it as intrinsically immoral do so.  Shea ought therefore to be willing to criticize those among his fellow abolitionists who do this.  They damage the credibility of the Church, and they thereby damage the credibility of the Catholic abolitionist position itself.

3. Shea repeatedly commits the fallacy of diversion

A fallacy of diversion is committed when someone changes the subject by addressing some question that superficially appears to be the one that is at issue, but in fact is not.  It has two main forms.  The red herring version of the fallacy involves the attempt to defend some claim by arguing for some other, seemingly related but in fact distinct claim.  The straw man version of the fallacy involves the attempt to refute some opponent’s claim by attacking some other, seemingly related but in fact distinct claim.  Shea commits both versions of the fallacy, and in a pretty crude manner.

The bulk of Shea’s post is devoted to a long rant about the state of American conservatism, foreign despotisms, recent police shootings of unarmed black men, the for-profit prison system, Donald Trump Jr.’s recent remarks about terrorism, and so on.  What does any of this have to do with what Joe and I wrote in our Crisis article, or what I wrote in my initial response to Shea?  The answer, of course, is “nothing whatsoever.” 

One could consistently favor capital punishment under some circumstances even if one were to agree with Shea about the state of American conservatism, even if one opposes the specific manner in which capital punishment is implemented in the despotisms Shea has in mind, even if one agrees with Shea about the police shootings, even if one agrees with Shea’s objections to the for-profit prison system and Trump Jr.’s remarks about terrorism, etc.  Shea’s remarks thus amount to a long string of red herrings. 

Shea also attacks a straw man, and unfortunately, it is the very same straw man he attacked in his previous post and to which I called attention in my previous reply to him.  He writes:

[T]he whole point of arguments for the death penalty is that some lives don’t matter at all…

At this point, the custom is typically to argue that such lives do matter and the way of honoring them is to threaten them with death since hanging concentrates the mind of the sinner and direct him to attend to eternal things.  But, of course, that’s just as true for any sinner.  Yet nobody calls for death for car thieves.  No.  The real reason for the death penalty is that there are just classes of people we want to kill.  People whose lives don’t matter a bit…  

The death penalty… appeals to our darkest side…

It is contrary to the spirit of the Church to search for excuses for it.  

End quote.  So, once again Shea trots out this cartoon fantasy villain upon which he seems positively fixated -- the capital punishment advocate as someone who is simply desperate to kill someone and frantically looks around for a way to justify doing so.  Unsurprisingly, Shea never tells us just who it is, specifically, who fits this description.  Certainly Joe Bessette and I do not.

The reason Joe and I favor preserving capital punishment for the very worst offenses is that we believe that a dispassionate evaluation of the relevant philosophical and theological arguments and the empirical evidence shows that this is the best way to realize the four main purposes of punishment recognized by the Church, viz. retributive justice, deterrence, the reform of the offender, and the protection of society.

First, according to Catholic teaching, all just punishment rests on the principle that an offender deserves a punishment that is proportional to the crime.  When capital punishment is absolutely kept off the table even in the case of the most heinous offenses, this fundamental principle is undermined.  Society loses sight, first of the idea of proportionality, then of the idea of desert, and finally of the idea of punishment itself.  And when the idea of punishment goes, the very idea of justice goes with it.  The idea of securing justice is replaced by a therapeutic or technocratic model that treats human beings as cases to be managed and socially engineered, rather than as morally responsible persons.  (The understanding of punishment that we endorse was not only traditionally defended by Catholic natural law theorists and moral theologians, but was also given a very detailed and eloquent expression in some neglected discourses by Pope Pius XII, which we discuss extensively in the book.)

Secondly, we argue that there is very good reason to believe that capital punishment does indeed have a significant deterrent effect, and thus saves many innocent lives.  Third, we also argue that capital punishment is indeed necessary for the protection of society.  And fourth, we argue that capital punishment promotes the reform of the offender by prompting repentance.  Again, all of these claims are defended at length in the forthcoming book. 

Now, Shea mocks the suggestion that capital punishment promotes repentance, writing that “nobody calls for death for car thieves,” so that “the real reason for the death penalty is that there are just classes of people we want to kill.”  But as should be obvious to any fair-minded person, the reason “nobody calls for death for car thieves” is that this would not be a proportional punishment, whereas “the real reason” people do call for death for murderers is that that would be a proportional punishment. 

Furthermore, no one claims that a concern for motivating repentance should ever be the only consideration where any punishment is concerned, not just capital punishment.  For example, it would be wrong to inflict ten years of jail time on someone who merely stole a candy bar, even if this would motivate his repentance, because the punishment is simply out of proportion to the offense.  But it obviously doesn’t follow that we should therefore completely ignore the question of what might motivate repentance when deciding how to punish a candy bar thief.  Rather, what follows is that we should first make sure a punishment for that offense is proportionate before considering whether the punishment might also motivate repentance.  Similarly, the defender of capital punishment argues that since we already know on independent grounds that a penalty of death is deserved for some crimes (such as murder, but not for car theft), we have reason in those cases to consider also the question whether it might motivate repentance. 

Now, Shea would no doubt disagree with our claim that the death penalty best realizes these four traditional aims of punishment.  Fine; that is his right as a Catholic.  I invite him to read our book when it comes out and I welcome any reasoned objections he might raise against our arguments.  The point, though, is that it is our reasoned conviction that it really does best realize them – rather than there “just [being] classes of people we want to kill” so that we are “search[ing] for excuses” for doing so – that motivates our position.  As I noted in my previous post – in yet another point that Shea simply ignores – these are also the sorts of considerations that motivated defenders of capital punishment like St. Thomas Aquinas, St. Peter Canisius, St. Alphonsus Ligouri, St. Robert Bellarmine, Pope St. Pius V, Pope Pius IX, Pope Pius XII and many other saints, popes, and eminent moral theologians of the past.  If Shea were consistent, then he would have to hold that these thinkers were also motivated by a mere desire to find excuses to kill people.   If he does not hold that – and no faithful Catholic possibly could hold that – then he has to admit that contemporary Catholics who defend capital punishment might do so for the same, honorable (even if in Shea’s view mistaken) reasons these Catholics of the past did.

In response to a comment made by one of his readers, Shea appears to suggest that objections to his characterization of his opponents has to do with concern for “the tender feelings of people who want to put other people to death without mercy.”  But this is another fallacy of diversion.  The problem has nothing to do with “tender feelings.”  The problem has to do with calumny – with gravely unjust and uncharitable misrepresentations of the views and motivations of his opponents.

4. Shea repeatedly begs the question

Another fallacy Shea repeatedly commits is that of begging the question, or assuming, without argument, precisely the claim that is at issue with one’s opponent.  For example, he writes:

I cannot, for the life of me understand taking away one drop of time or energy from the fight against abortion to author books and articles bent on fighting the common sense of the Church when she calls for an end to the death penalty.  It is an immense squandering of time, money, and manpower…

End quote.  One problem with this, of course, is that it is quite silly to pretend that given time constraints, one simply has to choose between defending capital punishment and fighting abortion.  Some of us are quite capable of walking and chewing gum at the same time.  

The deeper problem, though, is that defending capital punishment would be “an immense squandering of time, money, and manpower” only IF there were no significant good to be gained by upholding capital punishment or no significant harm that might follow upon abolishing it.  And of course, that is exactly what Joe and I and other defenders of capital punishment deny.  Again, we maintain that the extreme Catholic abolitionist position has done harm to the credibility of the Church’s magisterium and that abolishing capital punishment would seriously impede the realization of the main purposes of punishment.  Hence defending capital punishment is by no means “an immense squandering of time, money, and manpower.” 

Naturally, Shea would disagree with that claim, but the point is that his remarks about how best to use time and other resources simply assume, without argument, precisely what his opponent denies, viz. that there are no good reasons to devote resources to defending capital punishment.

Shea also repeats his assertion that being “more prolife, not less” requires opposition to capital punishment – completely ignoring, rather than answering, the objections I raised in my previous post to his appeal to the “pro-life” slogan.

Finally, as in his original reply to Joe and me, so too in his latest post, Shea also asserts that “studies indicate about 4% of those on death row are… innocent” and that “4 in 100… of them are killed despite their complete innocence.”  Now, I explicitly addressed this very claim in my previous post, quoting my co-author Joe Bessette’s explanation of how Shea had misrepresented the study he cited as the basis of his 4% claim.  Yet bafflingly, Shea once again completely ignores what I wrote and simply re-asserts the original claim, as if Joe hadn’t already refuted it!

I have noted how certain New Atheists exhibit a “Walter Mitty”-like tendency relentlessly to attack fantasy adversaries rather than engaging with what their real-world opponents actually say.  Even the most patient and thorough explanations of how their criticisms are aimed at straw men are completely ignored, and never distract them from endlessly repeating favorite talking points long after they have been refuted.  I am sorry to say that Shea seems to have a similar tendency, even if his targets are of course different from those of the New Atheists. 

It needn’t be this way.  Again, Shea has produced some excellent work.  I am sure that a treatment by him of the anti-capital punishment position that was executed with the kind of patience, care, and fair-mindedness that his best apologetics work exhibits would be well worth engaging with.